Margate beach replenishment can start, but state must follow proper procedures, judge says

Updated on Jan 16, 2015 at 12:24 AM EST

The beach in Margate in April 2012 before Hurricane Sandy (Andrew Mills | The Star-Ledger)

Flooding and beach erosion around Lucy the Elephant in Margate. Many along the Jersey Shore have been hit hard by the most recent nor'easters and has experienced significant beach erosion in some areas. 10/5/15 (Andrew Mills | NJ Advance Media for NJ.com)

Aerial view of the Margate Fishing Pier. Many along the Jersey Shore have been hit hard by the most recent nor'easters and has experienced significant beach erosion in some areas. 10/5/15 (Andrew Mills | NJ Advance Media for NJ.com)

Aerial view of South Brunswick Avenue in Margate. Many along the Jersey Shore have been hit hard by the most recent nor'easters and has experienced significant beach erosion in some areas. 10/5/15 (Andrew Mills | NJ Advance Media for NJ.com)

CAMDEN
A beach replenishment project for Margate can move forward, but the state Department of Environmental Protection has to give property owners in the city the chance to challenge the states taking of easements there for the project, a federal judge said on Thursday.

While U.S. District Judge Renee Marie Bumbs decision lets the federal government award a contract for the beach replenishment work on Absecon Island, it also cautions the state that she will step in again if state officials dont follow the proper procedures to obtain the easements.

A states power to take property from a private person is not without constitutional limitations, Bumb wrote. A property owner must have an opportunity to be heard before the final determination of whether the taking was for a public purpose.

Bumb said that if the state has not yet started condemnation proceedings against Margate by the time beach replenishment work gets started, the city can go back to federal court.

At the heart of the issue is the DEPs use of an administrative order to take ownership of easement rights on Margate beaches for dune construction. Margate officials argued that by relying on an administrative order, the state prevented Margate from legally challenging the taking of the easements.

In U.S. District Court earlier in the day on Thursday, attorney Thomas Biemer, one of Margates attorneys, said the state should have followed the provisions of the New Jersey Eminent Domain Act to get the easements. He said those provisions would have given Margate the opportunity to try to convince a state Superior Court judge that the DEP acted arbitrarily in taking the easements and that the city would suffer irreparable harm to its tourism because of the project.

The city asked Bumb to restrain the state and the Army Corps from starting the work. Last month, Bumb granted a temporary restraining order, which expired on Thursday unless she agreed to make it permanent but she decided against doing that.

Rob Andrews, the former New Jersey congressman who served as one of the attorneys for Margate, said Bumbs decision recognizes the citys claim that the state needs to follow eminent domain proceedings to obtain property easements.

We are thankful that the decision wisely recognizes that the state cannot utilize arbitrary and unjustified procedures that violate the rights of property owners, he said. We strongly agree with the court that no government can claim ownership of anyones propertyincluding our beachesby simply filing a document declaring its ownership.

Andrews said the judges decision effectively stops the beach replenishment project for now. He said it forces the state to take one of three actions, all of which are acceptable to Margate. He said the Army Corps can award the contract without the DEP going to state court, which would force Margate back to federal court. He said the DEP could file condemnation proceedings in state court, which is what Margate had wanted. Or the Army Corps could decide that there is too much confusion about how the project will be handled so it wont immediately award the contract, Andrews said.

Until the court challenge, the Army Corps had planned to award the $35 million contract last month for a project to start in the spring. The new target date for awarding the contract is Jan. 26.

It is unclear whether that date will still hold. DEP spokesman Larry Ragonese said his agency is still deciding the next step but noted that the goal is to still have the work start in the spring.

We are pleased by the ruling, Ragonese said. We anticipate the Army Corps of Engineers will move ahead as quickly as possible with this project so we can provide enhanced coastal protection to residents of Margate and neighboring towns.

Andrews said the city has always sought a storm protection plan that would be best for its residents but said the Army Corps plan is based on a a 20-year-old study and relies on a one-size-fits-all approach that is not appropriate for Margate.
MaryAnn Spoto may be reached at
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